The St. Johns herald., 1887-12-15

servient and dominant estate. Mir Washburn, in his work on Ease, ment and Seryitudes, Sd edition chapter 1, section 1, gives this de- finition of an easement, and this definition has been accepted ever since as the standard rule:
 First. It is incorporeal.
 Second. It is imposed on corpo- real property, and not on the owner thereof.
 Third. It confers no right to a participation in the profits arising from such property.
 Fourth. Itis imposed for the ben eft of corporeal property.
 Fifth. There must be two distinct tenements or estates, the dominant and servient.
 He then says: "The grantee of such an easement is not the owner, or occupant of the estate over which the way is used" And on page 10, he says: Eff at any time these es- tates are united under one owner ship and possession, the easement is at once extinguished. Now, it is true that the right to take private property for public uses is an in- herent right of sovereignty; and exists in every independent govern ment; it is equally true that the use of lands, taken for the purpose of constructing a railroad, is public use, although taken by a private corporation to subserve it's own in- terests. But where the right of way is thus taken by the exercise of a power of eminent domain, or where it is granted voluntarily by private deed, or as in the case at bar, by legislative enactment; Tn either, or in all, is rot the right of way ac- quired, simply an easement for a specific purpose-neither method, in obtaining of which, need be used, if the title-the fee were already vested in the corporation? And although reaching to the reductis ad absurdeum, is not the conclu- sion unavoidable that, if the Allan tic & Pacific R. R. Co.,, in obtain ing its charter from congress, grant ing it the right of way for it's rail- road, thereby acquired the absolute title in fee to the 200 foot strip of public land through this territory, then the plaintiff has no easement therein at all-the same being ex- by acquiring the fee, or servient estate. And, carrying the absurdity still further, as a right of way is an easement, having no ease ment, therefore it has no right of way.
 We have felt constrained to say this much on the subject of ease ment, for the reason that plaintiffs counsel lays much stress on this point, and makes a learned and in- genious argument to show that, un- der this new feature of jurispru- dence, the right of way, granted plaintiff by congress. is more than an ordinary right of way; that it is an absolute fee simple title to the land. But, even admitting that the used by the act of congress did vest the fee, we think 1t would by no means follow that these inn provements would be exempt from taxation. Indeed, we think they would not be. True, congress has the absolute disposal of the public lands; but has congress curtailed the sovereignty of the territorial to the extent of abso- Iutely disrobing it of the taxing power, without manifesting plainly | and unequivocally the legislative will? We think not. It was intend ed, and is essential, that the taxing power should be concurrently | yielded by the federal and territo- rial governments. Suppose, as is largely true in this territory, that all |